Noyes v. Thorpe

• Decision Date: 02 January 1906
• Citation: 73 N.H. 481,62 A. 787
• Parties: NOYES v. THORPE.
• Court: New Hampshire Supreme Court

62 A. 787

73 N.H. 481

NOYES

v. THORPE.

Supreme Court of New Hampshire. Grafton.

Jan. 2, 1906.

Exceptions from Superior Court; Wallace, Judge.

Bill by Walter S. Noyes against Charles A. Thorpe for discovery in aid of an action for libel. A demurrer to the bill was sustained, and plaintiff brings exceptions. Exceptions overruled.

Everett C. Howe and Smith & Smith, for plaintiff. Scott Sloane and Mitchell & Foster, for defendant.

BINGHAM, J. In the bill it is alleged that the plaintiff has brought an action at law against the defendant to recover damages for publishing in his newspaper a libelous article concerning the plaintiff; that the article was instigated and its publication brought about by persons unknown to the plaintiff, who either sent or dictated it to the defendant; that the plaintiff is not able to discover who the persons are; that the defendant knows who they are, but will not state; and that the plaintiff desires to know, so that he may Join them in his action against the defendant. The prayer of the bill is (1) that the defendant be required to produce the original writing containing the alleged libelous article, and (2) that he may be required to disclose who the persons were who dictated the article to him and procured him to publish it. The defendant demurs to the bill, and says his demurrer should be sustained (1) because the bill does not set out a legal cause of action, in aid of which the discovery is sought, and (2) because a disclosure of the matters prayed for would tend to incriminate him.

1. The bill states the nature of the action, the names of the parties to it, the term of court at which it was entered, and where it is pending. If this is not a sufficient reference to the action and the declaration contained therein, so as to incorporate into the bill the alleged slanderous words, the objection may be obviated by an amendment. As the bill may be amended to meet this objection, it is unnecesary to further consider the first reason assigned in support of the demurrer.

2. It is an established rule that a demurrer to a bill of discovery lies where the matter sought to be disclosed will convict or tend to convict the defendant of a crime; that he cannot be required to discover the principal fact, or any one of a series or chain of facts, which may contribute to establish a criminal charge against him. Reynolds v. Fibre Co., 71 N. H. 332, 334, 51 Atl. 1075, 57 L. R. A. 949, 93 Am. St. Rep. 535; Adams v. Porter, 1 Cush. 170; Marsh v. Davison, 9 Paige, 580; 6 Enc. Pl. & Pr. 743, 779. The malicious publication of a libelous article is a common-law crime, and punishable as a misdemeanor. May, Cr. L. 148. If, then, the production of the original article, taken in connection with other evidence, may tend to convict the defendant of a violation of the criminal law, he cannot be required to produce it. That the production of the article from the defendant's possession, unexplained, taken in connection with evidence of its publication, would tend to show that he was the person who published it, cannot be doubted. And if it appeared, on the production of the article, that it was in the handwriting of the defendant, the evidence would be of still greater weight in the establishment of his guilt. Regina v. Lovett, ...